Mediation: What are we looking for?

Almost since mediation became a process, there has been debate over how a mediator should conduct the mediation process. Most of the literature indicates that mediators tend to follow either a bargaining style of mediation or a therapeutic style of mediation. It is helpful to understand the differences between the philosophies in order to determine which style of mediation would be most effective in a particular dispute.

In a bargaining model, the focus is on determining a common positional interest between the parties to a particular dispute at that particular time. The goal is to assist the parties in resolving the issues at hand, trading benefits between the parties until a common resolution is reached. The primary purpose of mediation is to reach a settlement if possible. Under this broad model would fall such styles as analytical and problem solving.

Analytical involves the mediator using meetings with each party to evaluate the pros and cons of each party’s position without offering an opinion on a solution or settlement to any of the parties. Problem solving, often referred to as facilitative, seeks to assist the parties in developing options that could result in a mutually acceptable resolution of the issue(s). In most bargaining models, the mediator controls the process, such as when participants delineate their goals and issues, and when to refocus the participants on the issues at hand versus exploring underlying emotionally based issues.

Therapeutic model

In a therapeutic model, mediators often seek to address any underlying emotion or dysfunction that may be fueling the conflict. The resolution of the immediate conflict is not a goal in and of itself but would be a result of using the mediation conversation to generate a sense of empowerment for each party. The goal is to deepen the understanding of each participant in the other person’s perspective on each issue, and to allow the participants to change their interactions from the negative to a positive process.

Most mediators agree that while evaluative mediation is a valid dispute resolution process, it is not a true mediation process. That’s because when a mediator renders an opinion and/or evaluates a party’s position, two things may occur: 1) a participant feels pressure to accept and follow the opinion or the mediator; and/or 2) the mediator’s impartiality – or appearance of impartiality – may be diminished.

Still, many attorneys seek a more evaluative mediator, often a retired judge, to assist them in balancing the pros and cons of their client’s position. Neutral-case evaluations are an example of private evaluative processes and settlement conferences are examples of court-based evaluative processes. Both may lead to resolution, but often the participants feel coerced into a resolution that leaves them unheard and dissatisfied with the process.

Professors Kimberlee Kovach and Lela Love, whose definition of facilitative mediation includes both therapeutic and bargaining elements, believe that “so long as the mediator does not take an actual position, as would a judge, arbitrator or neutral expert, this conduct is reconcilable in a pure facilitative mediation model.” They support the movement between models, depending on the needs of the participants, as long as the mediator does not take an actual position and avoids coercion and/or pressure on the participants of the mediation.

Goals of mediation

The question becomes: how does a party and/or an attorney select a mediator in any particular case?

First, a determination should be made as to what are the expected outcomes or the goals of the mediation. Is settlement of a one-and-done issue more important than the underlying relationship of the parties? In addition, if the mediation is court-ordered, it could impact the type of mediator sought in any particular case.

For example, in a tort action involving an auto accident, often the plaintiff and the insurance company are one-time parties to this one particular case. While the insurance company may have an interest in future actions that are similar to the one that brought the parties to mediation, the survival of a relationship between the plaintiff and either the defendant or his/her insurance company is not a necessary result of mediation. In a probate matter, however, there may be a need or desire to maintain the familial relationships post mediation/resolution.

In the first case, a more bargaining model would be more productive, as the mediator would be more engaged in the process, and asking questions of each participant that are intended to open up new thinking in the brainstorming between the parties. In the second case, exploration of the underlying family issues (“Mom always did like you best”) may be necessary before each participant is able to develop options for resolving the dispute that brought them to mediation.

For all of these reasons, it is important to know your mediator; his style; whether she moves between styles and tools during a mediation session; and how he deals with the ultimate resolutions, such as preparing written documents formalizing the points of agreement. Mediators should be able to provide an outline of their styles of mediation before a session is scheduled, so that the participants have some knowledge of the type of mediation process that will be followed.  The more information mediators can provide to the public and potential sources of referrals about their style and process, the better the understanding between the parties, participants and the mediator will be once the session begins.

Cecilia “Ceecee” Paizs provides mediation services throughout the Maryland in family, commercial and community disputes through The Mediation Center (www.agreeonit.com.)  Ceecee also provides family law representation through SIEGELLAW in Ellicott City and can be reached at [email protected].